Washington v. State
| Decision Date | 07 December 1936 |
| Docket Number | 32469 |
| Court | Mississippi Supreme Court |
| Parties | WASHINGTON v. STATE |
Instruction that accused would be guilty of manslaughter if she was present at time of homicide and aided and assisted the actual murderer held erroneous under evidence.
APPEAL from the circuit court of Pike county HON. J. F. GUYNES Judge.
Myrtis Washington was convicted of an offense, and she appeals. Reversed and remanded.
Reversed and remanded.
L. H. McGehee, of McComb, for appellant.
The appellant specially excepted to the granting instruction No. 5, for the reason that said instruction is inconsistent with the theory of the state and should not have been given. Said instruction read as follows: "The court instructs the jury for the state that if you believe from all of the evidence in this case beyond a reasonable doubt that Willie Miller did wilfully, unlawfully and feloniously kill and slay Anderson Thomas, at a time when he, the said Willie Miller, was in 'no danger, real or apparent, of losing his own life or of suffering some great bodily harm at the hands of the said Anderson Thomas, and that the defendant, Myrtis Washington, was present aiding and assisting the said Willie Miller, then the defendant, Myrtis Washington, is guilty of manslaughter and it is your sworn duty to so find."
Webb M. Mize, Assistant Attorney General, for the State.
The granting of instruction No. 5 for the State was not error.
In the first instance this instruction announces a correct principle of law.
Moon v. State, 168 So. 476; Fisher v. State, 150 Miss. 206, 116 So. 746.
This instruction was objected to for the reason that it was inconsistent with the theory of the state. The case of Triplett v. State, 159 Miss. 365, 132 So. 449, holds that the jury may believe portions of the testimony of each witness and disregard other portions. Therefore, this instruction was proper to take care of the situation arising in the event the jury chose to disregard some of the testimony of the state and some of the testimony of the defense. The evidence of the state, if believed by the jury, would make a clear case of murder.
The instruction authorizes a conviction of manslaughter. Appellant was convicted of manslaughter. Therefore, under the authority of Seales v. State, 169 So. 843, the appellant is precluded from complaining here. It might be said here further that the State does not have to confine itself to any one theory in order to sustain a conviction.
The testimony of the witnesses on behalf of the State is, in brief, that about midnight, appellant, in company with Willie Miller, was walking along the sidewalk, and having reached a point opposite a barber shop, they encountered the deceased, whom appellant abused with profane epithets. No physical clash occurred at that point, however, and appellant and her escort resumed their walk. When they had gone a few feet, deceased overtook them, and, with his fists, assaulted Miller from his back. Miller at once turned upon the deceased, his assailant, and a fight ensued, when almost immediately appellant rushed into the fray and stabbed the deceased, thus ending the encounter. They say that Miller was unarmed, and, particularly, that he had no knife. There is no testimony that these events occurred as the result of any preconcerted design. Appellant's part in it was, according to the State's evidence, that she abused the deceased, thence went on her way, and when the fight subsequently occurred she hurried into it, stabbing the deceased as she did so, and immediately thereafter left the scene.
The testimony of the defendant's witnesses, of whom there were several, is that the original quarrel was between the deceased and Miller, and they agree with the State's witnesses that no physical encounter happened at that time. Defendant's witnesses say that when ...
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